Daggett v. Daggett

C. Allen, J. 1. There was evidence, sufficient to be left to the jury, to show that the deed was delivered to Eliza merely as an escrow. The consideration mentioned in the deed was $300, but the grantee named therein paid nothing, and upon all the evidence the jury might think that the deed was not to be [520] delivered to the grantee until he should marry Eliza, or make a bargain with somebody for the sale of the land, and pay to her the -$300 mentioned as the consideration. We cannot say that the necessary construction of her testimony implied that the deed was to take effect at once, as the present deed of the grantor to the grantee; and, the jury having found otherwise, the deed must now be considered as having been delivered merely as an escrow. 2. When a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. It is not the grantor’s deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed, yet it is not the grantor’s deed, and he may avoid it by pleading non est factum. The grantee cannot acquire the title by gaining possession of the deed by theft, by fraud, or by the voluntary act of the depositary, but only by performance of the condition. The depositary has no authority to waive such performance, and an unauthorized delivery by him of the deed which he holds in escrow is entirely ineffectual to pass the title. Wheelwright v. Wheelwright, 2 Mass. 447, 452. Foster v. Mansfield, 3 Met. 412. O'Kelly v. O'Kelly, 8 Met. 436. Calhoun v. American Emigrant Co. 93 U. S. 124, 127. Watkins v. Nash, L. R. 20 Eq. 262. 3 Washb. Real Prop. (5th ed.) 321. In the present case, it having been found that the deed was merely an escrow, and there being no pretence that the conditions were ever performed, no title passed to the grantee by the subsequent delivery of the deed to him. The case is not like cases where the delivery of the deed is merely to await the lapse of time, or the happening of some event, not involving the performance of any condition by the grantee. 3. It being thus plain that no title passed to the grantee, the only remaining question is whether Eliza is estopped to maintain her rights by the judgment in the action of replevin, whereby he established against her his right to the possession of the deed. In the first place, it is clear that the other demandant, Henry W. Daggett, cannot be affected by any such estoppel. He was [521] no party to the action of replevin. The defence of estoppel, if available against Eliza, does not extend to him. But there is no estoppel even as to her. The title to the land could not be tried directly in the action of replevin, which lies only for personal chattels. Brown v. Wallis, 115 Mass. 156. Even though the title to land might be inquired into incidentally, for the purpose of determining the ownership of chattels, it is sufficient to say, in the present case, that it is not shown, either by the record or by parol evidence, that the title to the land was, in fact, put in issue, tried, passed upon, or in any way brought in question in that action ; and the judgment therein cannot have the effect to estop her from asserting her true title now. Gilbert v. Thompson, 9 Cush. 348. Dutton v. Woodman, 9 Cush. 255, 261. Burlen v. Shannon, 99 Mass. 200. Hanham v. Sherman, 114 Mass. 19. White v. Chase, 128 Mass. 158. Russell v. Place, 94 U. S. 606. Cromwell v. Sac, 94 U. S. 351. Howlett v. Tarte, 10 C. B. (N. S.) 813. Exceptions overruled.